News Item

04/20/2017

ThinkProgress: "A leaked draft of the Clean Water Rule rewrite circulating around Washington has Scalia’s legacy all over it"

CREDIT: AP Photo/Andrew Harnik

. . . “If this rule were adopted, it would be an outrageous contraction of the scope of the Clean Water Act that is contrary to Congress’ clear intent, and this arbitrary reversal would never withstand review in court,” Karl Coplan, a professor at Pace Law School, told ThinkProgress.

But finalizing a rule based on Scalia’s interpretation in the Rapanos case could lead to legal trouble down the road for the administration. Lower courts have generally been split in their decisions about giving deference to Kennedy’s definition, or Kennedy and Scalia’s definition together. No court has upheld the Scalia opinion on its own — it’s always been taken in conjunction with the Kennedy test.

That means the Trump administration’s rewrite directly contradicts how the Court of Appeals has been interpreting the Rapanos decision, and throws into question how favorably the Court of Appeals would view the Trump administration’s rule if it were ever challenged in court. And if the challenge were to reach the Supreme Court while Kennedy was still on the bench, convincing a majority of justices to side with the administration’s rule would mean convincing Kennedy to disagree with his own opinion in favor of a definition he rejected more than a decade ago.

“If the Trump administration proposes a new rule along the lines of what is in the current draft I would bet good money that it would be overturned in court, and I say that without even knowing how they might embellish the record or try to defend this new approach,” Mark Squillace, professor at the University of Colorado Law School, told ThinkProgress in an email after reviewing the draft.

Perhaps further complicating matters concerning the Trump administration’s rewrite of the rule, industry groups close to EPA Administrator Scott Pruitt are reportedly pushing for the EPA to outsource rewriting the rule to private law firms. That would allow Pruitt to bypass career EPA employees who worked on promulgating the Obama administration rule, and would mean less public scrutiny of the decision-making process. Legal experts told Politico that such a move would be “likely legally doable,” but “almost unheard of.”

On April 19, amid rumors of outsourcing the rule-making process and Pruitt’s reported intention to rewrite the rule as quickly as possible, 26 environmental and conservation organizations sent Pruitt a letter asking the agency to reconsider basing the rewritten rule on Scalia’s opinion.

“We especially fear the damage that a final rule would inflict on the nation’s waterways if, as Executive Order 13,778 forecasts, it relies on a legal test that a majority of the justices on the Supreme Court rejected and that would weaken the federal rules so that they protect fewer resources than they have in several decades,” the letter read.

If the Trump administration moves forward and finalizes a rule based on Scalia’s opinion, the rule is certain to face a suite of challenges from environmental groups in court. And while the draft of the rule could certainly change before being finalized, Ann Powers of Pace Law School said that drafting a rule based on Scalia’s opinion certainly represents a step towards rolling back clean water protections for much of America’s wetlands and waterways.

“This is not a done deal tomorrow, but it is certainly a critical step in the path to undoing a great deal of protections for our national wetlands,” Powers said. “It would be very unfortunate if this were to be implemented.”

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